Citation Nr: 1036028
Decision Date: 09/23/10 Archive Date: 09/30/10
DOCKET NO. 00-24 142 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia,
Pennsylvania
THE ISSUES
1. Entitlement to an increased evaluation for lumbosacral
strain, currently rated as 40 percent disabling.
2. Entitlement to benefits pursuant to the provisions of 38
U.S.C.A. § 1151 for a heart disorder.
3. Entitlement to a total disability rating based on individual
unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
Dan Schechter
INTRODUCTION
The Veteran had active service from June 1968 to June 1972.
The appeal comes before the Board of Veterans' Appeals (Board)
from a December 1999 rating decision by the above Department of
Veterans Affairs (VA) Regional Office (RO), denying an increased
evaluation for lumbosacral strain with traumatic degenerative
arthritis, rated at 40 percent, and denying entitlement to TDIU.
In the course of that appeal, in October 2002, the Veteran and
his wife testified before a Hearing Officer at the RO addressing
these two appealed claims, and a transcript of that hearing is
contained in the claims file. The appeal also arises from a May
2003 RO decision denying benefits pursuant to the provisions of
38 U.S.C.A. § 1151 for a heart disorder.
In March 2008, the Veteran and his wife testified before the
undersigned Veterans Law Judge at a Travel Board hearing at the
RO. A transcript is in the claims file.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant
when further action is required.
REMAND
Regarding the Veteran's claim for an increased evaluation for his
service-connected lumbosacral strain, currently rated 40 percent
disabling, the Board observes that the VA examiner who conducted
an examination of the Veteran's back for compensation purposes in
December 2009 noted strong functional overlay, with significant
grunting and grimacing and complaints of pain in the lower
extremities, as well as instability when standing which the
Veteran attributed to his back, a halting gait with no specific
limp, and self-limiting movement of the back which the examiner
noted made evaluation of accurate range of motion "somewhat
difficult." In addition, the Veteran reported episodic pain
radiation to the lower extremities which was reportedly not
present on the day of examination. He reported that he usually
spent most of the day in an easy chair except for household
necessities, thus providing a subjective picture of a potentially
severe level of disability attributable to his back. The
examiner noted that lumbar X-rays showed only slight to moderate
degenerative changes at multiple levels. The examiner was
unclear whether disk degeneration might be implicated by the
self-reported radiating pain.
This noted self-limiting of activity and functional overlay and
report of significant functional limitation associated with
radiating pain not present at the day of examination combine
ultimately to render the examination insufficient to allow the
Board to evaluate appropriately the Veteran's back disorder for
compensation purposes. Pursuant to the duty to assist, VA should
make a further effort determine whether the low back exhibits
weakened movement, excess fatigability, or incoordination, and
whether pain could significantly limit functional ability during
flare-ups, or when the joint is used repeatedly over a period of
time. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§
4.40, 4.45 (2009). In particular, that duty requires an
additional effort to evaluate the Veteran during one of his
reported episodes of flare-up of radiating pain into the lower
extremities. While the examiner specifically addressed in the
negative the presence of increased symptoms with repeated use,
any increase during flare-ups was not addressed in the examiner's
findings or conclusions, necessarily because they were not
present at the time of examination.
Accordingly, remand for another attempt at current evaluation of
the Veteran's back disorder is called for. Further testing to
ascertain whether degenerative disk disease is present may also
be warranted, potentially to inform whether increased limitation
of functioning may be present during flare-ups.
Regarding all three claims on appeal, the Veteran has submitted
additional private treatment records and additional private
medical evaluations not considered by the RO or Appeals
Management Center (AMC), including recent records dated from 2009
and 2010 not contained within the claims file prior to the most
recently issued supplemental statement of the case (SSOC) in May
2010. The Veteran did not provide waiver of RO review of this
evidence, and the Veteran's statements submitted with those
records clearly indicate he has no intention of waiving due
process rights. An SSOC must be furnished to the appellant and
his representative when additional pertinent evidence is received
after a SSOC is issued, when no waiver of such RO review is
provided. 38 C.F.R. §§ 19.31, 20.1304(c) (2010).
Accordingly, the case is REMANDED for the following action:
1. Afford the Veteran an opportunity to submit
additional evidence or argument in support of his
three claims on appeal. Any indicated
development should then be undertaken, and all
records and responses received should be
associated with the claims file.
2. Thereafter, afford the Veteran an additional
VA orthopedic examination to address the nature
and severity of his service-connected low back
disorder, characterized as lumbosacral strain
with traumatic arthritis. To the extent
possible, the examination should be arranged at a
time when the Veteran is experiencing one of his
asserted flare-ups of symptoms of low back
disability with associated radicular symptoms
into the lower extremities. The claims folders
must be made available to the examiner for review
in conjunction with the examination. All
clinical and special test findings should be
clearly reported, and pertinent orthopedic
findings should be reported to allow for
application of current rating criteria for the
veteran's service-connected low back disorder.
The examiner should address the following:
a. The examiner should note that the
Veteran's prior examiner in December 2009
was rather equivocal in ascribing
limitations of functioning to actual low
back disability versus the "strong
functional overlay" which that examiner
reported encountering. If the current
examiner concludes that levels of disability
displayed at the examination are
substantially due to functional overlay, to
including any exaggeration or other
supratentorial causes, the examiner should
try, to the extent possible, to provide an
assessment of the current objectively
supported level of service-connected
disability of the low back, without regard
to subjective assertions if those subjective
assertions are believed in substantial
measure to be in the nature of functional
overlay. In this regard, the examiner
should note the observations of the December
2009 examiner, including significant
grunting and grimacing and complaints of
pain in the lower extremities, as well as
instability when standing which the Veteran
attributed to his back, a halting gait with
no specific limp, and self-limiting movement
of the back.
b. The examiner should provide an
assessment of ranges of painless motion of
the low back and of the spine as a whole.
Any pain with motion or pain with other
functional use of the low back and back as a
whole should be noted. Non-service-related
disability of the cervical or thoracic spine
or other parts should be differentiated from
that found to be attributable to the
Veteran's service- connected low back
disorder, to the extent possible. Regarding
limitation of motion found, the orthopedic
examiner should comment on the presence or
absence of associated pain, weakened
movement, excess fatigability,
incoordination, muscle atrophy, and the
functional loss resulting from any such
manifestations. The orthopedic examiner
should attempt to provide a range of useful
motion for the thoracolumbar spine as well
as the spine as a whole. In addressing all
these issues, the orthopedic examiner should
consider the veteran's clinical history.
c. An MRI or other testing, as necessary,
should be considered to ascertain whether
disk disease or neurological involvement is
present, as asserted by the Veteran, and if
present whether attributable to the
Veteran's service-connected low back
disorder. If present and attributable to
the service-connected low back disorder, the
examination should be expanded to include
neurological findings such as lower
extremity radiculopathy.
d. The examiner should address the effect
the Veteran's service-connected low back
disorder has on the veteran's capacity for
work or work-like activities.
e. The examiner should provide complete
explanations for all his/her opinions.
3. Thereafter, readjudicate the remanded claims
de novo. If any benefits sought are not granted
to the Veteran's satisfaction, provide him and
his representative with a Supplemental Statement
of the Case and afford the appropriate
opportunity to respond thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
___________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of
the Board of Veterans' Appeals is appealable to the U.S. Court of
Appeals for Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a final decision of the
Board on the merits of the appeal. 38 C.F.R. § 20.1100(b)
(2009).